The New Jim Crow (41 page)

It may not be easy for the civil rights community to have a candid conversation about any of this. Civil rights organizations are populated with beneficiaries of affirmative action (like myself) and their friends and allies. Ending affirmative action arouses fears of annihilation. The reality that so many of us would disappear overnight from colleges and universities nationwide if affirmative action were banned, and that our children and grandchildren might not follow in our footsteps, creates a kind of panic that is difficult to describe. It may be analogous, in some respects, to the panic once experienced by poor and working-class whites faced with desegregation—the fear of a sudden demotion in the nation's racial hierarchy. Mari Matsuda and Charles Lawrence's book
We Won't Go Back
captures the determination of affirmative-action beneficiaries not to allow the clock to be turned back on racial justice, back to days of racial caste in America. The problem, of course, is that
we are already there
.

Affirmative action, particularly when it is justified on the grounds of diversity rather than equity (or remedy), masks the severity of racial inequality in America, leading to greatly exaggerated claims of racial progress and overly optimistic assessments of the future for African Americans. Seeing black people graduate from Harvard and Yale and become CEOs or corporate lawyers—not to mention president of the United States—causes us all to marvel at what a long way we have come. As recent data shows, however, much of black progress is a myth. Although some African Americans are doing very well—enrolling in universities and graduate schools at record rates thanks to affirmative action—as a group, African Americans are doing no better than they were when Martin Luther King Jr. was assassinated and riots swept inner cities across America. Nearly one-fourth of African Americans live below the poverty line today, approximately the same as in 1968. The child poverty rate is actually higher today than it was then.
⁴⁰
Unemployment rates in black communities rival those in Third World countries. And that is
with
affirmative action!

When we pull back the curtain and take a look at what our so-called colorblind society creates without affirmative action, we see a familiar social, political, and economic structure—the structure of racial caste. When those behind bars are taken into account, America's institutions continue to create nearly as much racial inequality as existed during Jim Crow.
⁴¹
Our elite universities,
which now look a lot like America, would whiten overnight if affirmative action suddenly disappeared. One recent study indicates that the elimination of race-based admissions policies would lead to a 63 percent decline in black matriculants at all law schools and a 90 percent decline at elite law schools.
⁴²
Sociologist Stephen Steinberg describes the bleak reality this way: “Insofar as this black middle class is an artifact of affirmative action policy, it cannot be said to be the result of autonomous workings of market forces. In other words, the black middle class does not reflect a lowering of racist barriers in occupations so much as the opposite: racism is so entrenched that without government intervention there would be little ‘progress' to boast about.”
⁴³

In view of all this, we must ask, to what extent has affirmative action helped us remain blind to, and in denial about, the existence of a racial undercaste? And to what extent have the battles over affirmative action distracted us and diverted crucial resources and energy away from dismantling the structures of racial inequality?

The predictable response is that civil rights advocates are as committed to challenging mass incarceration and other forms of structural racism as they are to preserving affirmative action. But where is the evidence of this? Civil rights activists have created a national
movement
to save affirmative action, complete with the marches, organizing, and media campaigns, as well as incessant strategy meetings, conferences, and litigation. Where is the movement to end mass incarceration? For that matter, where is the movement for educational equity? Part of the answer is that it is far easier to create a movement when there is a sense of being under attack. It is also easier when a single policy is at issue, rather than something as enormous (and seemingly intractable) as educational inequity or mass incarceration. Those are decent explanations, but they are no excuse. Try telling a sixteen-year-old black youth in Louisiana who is facing a decade in adult prison and a lifetime of social, political, and economic exclusion that your civil rights organization is not doing much to end the War on Drugs—but would he like to hear about all the great things that are being done to save affirmative action? There is a fundamental disconnect today between the world of civil rights advocacy and the reality facing those trapped in the new racial undercaste.

There is another, more sinister consequence of affirmative action: the carefully engineered appearance of great racial progress strengthens the “colorblind” public consensus that personal and cultural traits, not structural
arrangements, are largely responsible for the fact that the majority of young black men in urban areas across the United States are currently under the control of the criminal justice system or branded as felons for life. In other words, affirmative action helps to make the emergence of a new racial caste system seem implausible. It creates an environment in which it is reasonable to ask, how can something akin to a racial caste system exist when people like Condoleezza Rice, Colin Powell, and Barack Obama are capable of rising from next to nothing to the pinnacles of wealth and power? How could a caste system exist, in view of the black middle class?

There are answers to these questions, but they are difficult to swallow when millions of Americans have displayed a willingness to elect a black man president of the United States. The truth, however, is this: far from undermining the current system of control, the new caste system depends, in no small part, on black exceptionalism. The colorblind public consensus that supports the new caste system insists that race no longer matters. Now that America has officially embraced Martin Luther King Jr.'s dream (by reducing it to the platitude “that we should be judged by the content of our character, not the color of our skin”), the mass incarceration of people of color can be justified only to the extent that the plight of those locked up and locked out is understood to be their choice, not their birthright.

In short, mass incarceration is predicated on the notion that an extraordinary number of African Americans (but not all) have freely chosen a life of crime and thus belong behind bars. A belief that all blacks belong in jail would be incompatible with the social consensus that we have “moved beyond” race and that race is no longer relevant. But a widespread belief that a majority of black and brown men unfortunately belong in jail is compatible with the new American creed, provided that their imprisonment can be interpreted as their own fault. If the prison label imposed on them can be blamed on their culture, poor work ethic, or even their families, then society is absolved of responsibility to do anything about their condition.

This is where black exceptionalism comes in. Highly visible examples of black success are critical to the maintenance of a racial caste system in the era of colorblindness. Black success stories lend credence to the notion that anyone, no matter how poor or how black you may be, can make it to the top, if only you try hard enough. These stories “prove” that race is no longer relevant. Whereas black success stories undermined the logic of Jim Crow,
they actually reinforce the system of mass incarceration. Mass incarceration depends for its legitimacy on the widespread belief that all those who appear trapped at the bottom actually chose their fate.

Viewed from this perspective, affirmative action no longer appears entirely progressive. So long as some readily identifiable African Americans are doing well, the system is largely immunized from racial critique. People like Barack Obama who are truly exceptional by any standards, along with others who have been granted exceptional opportunities, legitimate a system that remains fraught with racial bias—especially when they fail to challenge, or even acknowledge, the prevailing racial order. In the current era, white Americans are often eager to embrace token or exceptional African Americans, particularly when they go out of their way not to talk about race or racial inequality.

Affirmative action may be counterproductive in yet another sense: it lends credence to a trickle-down theory of racial justice. The notion that giving a relatively small number of people of color access to key positions or institutions will inevitably redound to the benefit of the larger group is belied by the evidence. It also seems to disregard Martin Luther King Jr.'s stern warnings that racial justice requires the complete transformation of social institutions and a dramatic restructuring of our economy, not superficial changes that can purchased on the cheap. King argued in 1968, “The changes [that have occurred to date] are basically in the social and political areas; the problems we now face—providing jobs, better housing and better education for the poor throughout the country—will require money for their solution, a fact that makes those solutions all the more difficult.”
⁴⁴
He emphasized that “most of the gains of the past decade were obtained at bargain prices,” for the desegregation of public facilities and the election and appointment of a few black officials cost close to nothing. “White America must recognize that justice for black people cannot be achieved without radical changes in the structure of our society. The comfortable, the entrenched, the privileged cannot continue to tremble at the prospect of change in the status quo.”
⁴⁵

Against this backdrop, diversity-driven affirmative action programs seem to be the epitome of racial justice purchased on the cheap. They create the appearance of racial equity without the reality and do so at no great cost, without fundamentally altering any of the structures that create racial inequality in the first place. Perhaps the best illustration of this fact is that, thanks in part to affirmative action, police departments and law enforcement
agencies nationwide have come to look more like America than ever, at precisely the moment that they have waged a war on the ghetto poor and played a leading role in the systematic mass incarceration of people of color. The color of police chiefs across the country has changed, but the role of the police in our society has not.

Gerald Torres and Lani Guinier offer a similar critique of affirmative action in
The Miner's Canary.
They point out that “conventional strategies for social change proceed as though a change in who administers power fundamentally affects the structure of power itself.”
⁴⁶
This narrow approach to social change is reflected in the justifications offered for affirmative action, most notably the claim that “previous outsiders, once given a chance, will exercise power
differently
.”
⁴⁷
The reality, however, is that the existing hierarchy disciplines newcomers, requiring them to exercise power in the same old ways and play by the same old rules in order to survive. The newcomers, Torres and Guinier explain, are easily co-opted, as they have much to lose but little to gain by challenging the rules of the game.

Their point is particularly relevant to the predicament of minority police officers charged with waging the drug war. Profound racial injustice occurs when minority police officers
follow the rules
. It is a scandal when the public learns they have broken the rules, but no rules need be broken for the systematic mass incarceration of people of color to proceed unabated. This uncomfortable fact creates strong incentives for minority officers to deny, to rationalize, or to be willingly blind to the role of law enforcement in creating a racial undercaste. Reports that minority officers may engage in nearly as much racial profiling as white officers have been met with some amazement, but the real surprise is that some minority police officers have been willing to speak out against the practice, given the ferocity of the drug war. A war has been declared against poor communities of color, and the police are expected to wage it. Do we expect minority officers, whose livelihood depends on the very departments charged with waging the war, to play the role of peacenik? That expectation seems unreasonable, yet the dilemma for racial justice advocates is a real one. The quiet complicity of minority officers in the War on Drugs serves to legitimate the system and insulate it from critique. In a nation still stuck in an old Jim Crow mind-set—which equates racism with white bigotry and views racial diversity as proof the problem has been solved—a racially diverse police department invites questions like: “How can you say the Oakland Police Department's drug raids are racist?
There's a black police chief, and most of the officers involved in the drug raids are black.” If the caste dimensions of mass incarceration were better understood and the limitations of cosmetic diversity were better appreciated, the existence of black police chiefs and black officers would be no more encouraging today than the presence of black slave drivers and black plantation owners hundreds of years ago.

When meaningful change fails to materialize following the achievement of superficial diversity, those who remain locked out can become extremely discouraged and demoralized, resulting in cynicism and resignation. Perhaps more concerning, though, is the fact that inclusion of people of color in power structures, particularly at the top, can paralyze reform efforts. People of color are often reluctant to challenge institutions led by people who look like them, as they feel a personal stake in the individual's success. After centuries of being denied access to leadership positions in key social institutions, people of color quite understandably are hesitant to create circumstances that could trigger the downfall of “one of their own.” An incident of police brutality that would be understood as undeniably racist if the officers involved were white may be given a more charitable spin if the officers are black. Similarly, black community residents who might have been inspired to challenge aggressive stop-and-frisk policies of a largely white police department may worry about “hurting” a black police chief. People of color, because of the history of racial subjugation and exclusion, often experience success and failure vicariously through the few who achieve positions of power, fame, and fortune. As a result, cosmetic diversity, which focuses on providing opportunities to individual members of under-represented groups, both diminishes the possibility that unfair rules will be challenged and legitimates the entire system.